Reg new H1 and H1 transfer

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victor_shark

Registered Users (C)
Hi,

I hold a valid H1b Petition and visa (till 2008) from company A and I am currently in India since last 7 months.Another company B is interested in employing me.I have two choices
1) I apply under the upcoming H1B quota in April,remain in India for 5 more months i.e 1 year out of the US and get my fresh 6 year term from Oct 1 or

2) I might travel again to US thru company A soon and then apply H1B transfer to company B.

My question is if I opt for both 1 and 2 - i.e. I anyway apply under this upcoming quota for new H1 (company B) and then if I do get a chance to travel in next 1/2 months I apply for H1 transfer.Will there be any issues in such a case? Will my H1 transfer be not approved for company B since already a new H1 request is under process for same company B? Pl let me know...

Thanks!
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What is your goal ? Are you looking for cap-subject H1 or cap-exempt ?

You won't come under quota in #2 (i.e. you can not get 6 year H1) if you travelled to the US before hitting 1 year absence.
 
Hi GotPR,

The primary concern is if I am unable to travel to US from my current company A in the coming 2/3 months(or anytime for that matter) and if I do not apply under company B for the new quota now then I will have to wait for an entire year.I understand from your past help that (1) will come under cap and (2) will not.

But the major question is whether I can apply for both or not? Lets assume I apply under this upcoming quota for new H1 (company B) and then if I do get a chance to travel in next 2/3 months thru company A ,I apply for H1 transfer to company B.

Will there be any issues in such a case? Will my H1 transfer be not approved for company B since already a new H1 request is under process for same company B? Pl let me know...
 
Don't file 2 petitions w/ the one being quota and another not being quota. It just makes it complicated and screw the process.

Solution to your case is simple.
If one did not reach 6 year limit and stayed abroad more than a year, s/he is given a CHOICE to be subject to quota or not.
Read page 4 and beyondn of this memo.
http://www.uscis.gov/files/pressrelease/PeriodsofAdm120506.pdf

Whatever way it goes, you are not subject to quota.
 
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Assuming I do not want to wait for a whole year in India-
Does it mean that even though I am in India currently (and have existing H1 from Company A),I can still get a separate H1 petition processed from company B (of course not H1 transfer as it cannot happen in India) opting for the remainder of my current H1 six year term (not under cap) rather than a fresh H1 (under cap)?

Sorry for the repetition wrt this second question,dont mean to bother you unncessarily but have to ask-
In case the above is true,what will happen if I apply now thru company B for the remainder of H1B while in India and also get a chance to travel to US thru company A in the coming 2/3 months.Will there be any issues applying for an H1 transfer then since both cases will not be under cap?

How much time does it generally take for a H1 remainder petition approval i.e one which is not under cap?

Thanks in advance for your help...
 
victor_shark said:
Assuming I do not want to wait for a whole year in India-
Does it mean that even though I am in India currently (and have existing H1 from Company A),I can still get a separate H1 petition processed from company B (of course not H1 transfer as it cannot happen in India) opting for the remainder of my current H1 six year term (not under cap) rather than a fresh H1 (under cap)?
.
Click to expand...
I believe whether subject to quota or not does not matter where you are filing H1.
Law has never said you must be in the US to be exempt from H1 cap. It just says "if you were counted toward H1 quota before, you are exempt from cap".


(7) 2/ Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A)shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.
 
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Thanks.Essentially you are saying that I can indeed apply for another company H1 (the remainder period) while in India even though I have valid H1 from current company.Only thing is that my current H1 should have been counted under quota before.This brings me to two last questions:

1) How to check whether my current H1 (which was applied in 2003) was counted under the cap or not?
2) Can I also include request for reclaiming my India vacation and period outside USA time when I apply for the "remainder"?

Thanks
 
1) Only way is asking A or check their petition, but if they are not non-profit entity, it is for sure counted toward quota.
2) Yes.
 
Hi GotPR,

Just to confirm one point, as per the fine print on bottom of page 4 of the pdf,it indicates that even though the alien has spent less than 1 year out of US,he can still apply for the H1 from another company.Only thing is that he will have the option of applying only for the "remainder" period of current H1.Is this assumption correct?

Thanks
 
Memo says that if one did not exhaust 6 years with h1, s/he can file H1 either
option1: for 6 years H1 under quota or
option2: for remainder period w/o being under quota.

However, the fine print is saying option1 is not allowed to those who was not absent from the US more than a year, which is pretty much common understanding even before.

If you seek admission for remainder period, it does not matter whether you spend more than a year or less away from the US.
H1 can be applied regardless of where you are in the world as you are NOT the one to file, but your US employer is supposed to file.
 
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Hi GotPR,

Just wanted to extend my personal gratitude for helping me out on this.The PDF that you pulled out was not even known by some lawyers I contacted.Your knowledge and help has changed my life as I got the approval for the new company.Thanks again and please keep extending your help to everyone.
 
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